Citation Nr: 1318567 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 06-36 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for arthritis of both legs. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic bronchitis with asthma. 3. Entitlement to service connection for chronic bronchitis with asthma. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for laryngitis, nasopharyngitis with residual grippe. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had verified active duty service from November 1945 to December 1946, as well as prior unverified service from February 1945 to November 1945. With regard to service dates, the Veteran's official separation document (DD Form 214) indicates active duty from November 28, 1945, to December 27, 1946, with no prior active duty. The National Personnel Records Center (NPRC) also indicated in January 2010 that this was his period of active duty. However, the Veteran reports that he had a prior period of service from February 1945 to November 1945, including at Fort Jackson, South Carolina, at which point he immediately reenlisted. This appears to be consistent with the Veteran's service treatment records, which include an induction examination from February 1945, and treatment for various conditions prior to November 1945. There is also a November 24, 1945 service examination that was noted to be prior to discharge or release at Fort Jackson, South Carolina, and which found the Veteran to be "eligible for enlistment." The available DD Form 214 indicates that the Veteran began his active service on November 28, 1945, at Fort Jackson, South Carolina. The Veteran was subsequently treated for several conditions, and he underwent an examination in December 1946 prior to final discharge or release at Fort Buchanan, Puerto Rico. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. That determination denied an original claim for service connection for arthritis of the legs, and denied the applications to reopen the claims for service connection for bronchitis with asthma and for laryngitis, nasopharyngitis with residual grippe. In October 2009, the Board remanded those issues for further development. The case was again remanded in May 2011 to afford the Veteran his requested Board hearing. The Veteran was confined to a stretcher when he appeared at his Travel Board hearing before the undersigned Veterans Law Judge in April 2013, but was accompanied by his representative, and his wife provided testimony on his behalf. The Veteran had also testified at a formal hearing before a Decision Review Officer (DRO) at the RO in December 2006. A transcript of each hearing is of record. As discussed below, the evidence of record is now sufficient to reopen the claim for service connection for chronic bronchitis with asthma, and to adjudicate the application to reopen the claim for laryngitis, nasopharyngitis with residual grippe. Further development is required for a fair adjudication of the remaining claims. The Board has reviewed both the paper claims file and the Virtual VA paperless claims file (a highly secured electronic storage system). Currently, the only pertinent evidence not associated with the paper file is the April 2013 Travel Board hearing transcript, which has been considered. This paperless file should be account for during development and adjudication upon remand. As such, the issues of entitlement to service connection for chronic bronchitis with asthma and service connection for arthritis of the legs are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action is required on his behalf. FINDINGS OF FACT 1. Service connection for chronic bronchitis with asthma was last finally denied in an October 1978 determination by the RO; the Veteran was notified of the determination and his rights to appeal, but he did not appeal and no new and material evidence was received within one year of that determination. 2. Evidence received since the last final denial of service connection for chronic bronchitis with asthma includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim, the absence of which was the basis of the previous denial. 3. Service connection for laryngitis, nasopharyngitis with residual grippe, was last finally denied in an October 1978 determination by the RO; the Veteran was notified of the determination and his rights to appeal, but he did not appeal and no new and material evidence was received within one year of that determination. 4. Evidence received since the last final denial of service connection for laryngitis, nasopharyngitis with residual grippe, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1978 RO denial of service connection for chronic bronchitis with asthma became final, but new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. § 4005(c) (1976); 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2012). 2. The October 1978 RO denial of service connection for laryngitis, nasopharyngitis with residual grippe, became final, and new and material evidence has not been received sufficient to reopen the previously denied claim. 38 U.S.C. § 4005(c) (1976); 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of the information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). The notice requirements apply to all five elements of a service connection claim: (1) veteran status, (2) existence of a disability, (3) connection between the veteran's service and the disability, (3) degree of disability, and (4) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Complete VCAA notice should be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). With regard to an application to reopen a previously denied claim, the notice must include the general elements of a service connection claim, the standard for new and material evidence to reopen a claim, and the reason for the previous denial on the merits, including the types of evidence that are necessary to substantiate the claim. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). As the Board's decision herein to reopen the previously denied service connection claim for chronic bronchitis with asthma is completely favorable, no further action is required to comply with the VCAA and implementing regulations in this regard. Concerning the remaining claim to reopen, as directed in the prior remand, the Veteran was notified in a January 2010 letter of the evidence and information necessary to substantiate his service connection claim, the responsibilities of the Veteran and VA in obtaining such evidence, and the evidence and information necessary to establish a disability rating and an effective date. He was also advised of the correct standard for new and material evidence, the reason for the previous denials in 1953 and 1978, and the types of evidence necessary to substantiate his claims, in accordance with Kent. Although this letter was sent after the initial unfavorable rating action, this timing defect was cured by the subsequent readjudication of the claims, including in a March 2011 supplemental statement of the case. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). As noted above, two hearings were held in connection with the current appeal: a DRO hearing in 2006 and a Board hearing in 2013. To the extent that the hearing officers (including the undersigned Veterans Law Judge) did not explain the bases of the prior determinations, or suggest the submission of evidence that may have been overlooked, the Veteran has not been prejudiced. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (discussing the requirements of 38 C.F.R. 3.103(c)(2)). Rather, the hearing officers asked questions in an attempt to obtain evidence to substantiate the claims, and testimony was presented as to the Veteran's asserted symptoms during service, shortly after service, and presently. As noted above, the Veteran testified in 2006, and his wife testified on his behalf in 2013, although the Veteran and his representative were also present at that time. The hearings both focused on the elements necessary to substantiate the Veteran's claims, and actual knowledge of such requirements was shown via questioning and testimony. There is no indication or argument that any notification deficiencies have resulted in prejudice or otherwise affected the essential fairness of the adjudication. In particular, neither the Veteran nor his representative has argued that VA failed to comply with 38 C.F.R. 3.103(c)(2), or identified any prejudice as a result of the DRO or Board hearings. Rather, the Veteran has had ample opportunity to participate in the adjudication of his claims. He and his representative have submitted pertinent evidence and made pertinent arguments in support of his assertions. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has also substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant. Accordingly, adequate notice has been provided in this case. With regard to the duty to assist, the Veteran's service treatment records and VA and private treatment records have been obtained. The Board notes that the Veteran's representative has argued that only limited service treatment records are available. However, the Veteran's reported treatment in service for laryngitis and other respiratory disorders have been obtained. The evidence also includes records from several private providers over the years, as well as negative responses from certain providers or indications from the Veteran that the records are no longer available because the providers are deceased. As discussed in the remand portion below, there is an indication of possibly pertinent, outstanding records concerning the claims for arthritis and chronic bronchitis with asthma. However, there is no indication that any outstanding records would provide further support for the Veteran's claim for laryngitis, nasopharyngitis with residual grippe. Specifically, the Veteran applied to reopen the previously denied claims in November 2005. In order to warrant service connection, the evidence must show a current disability at some point during the course of the appeal. Moreover, the reason for the prior denial of the claim was the lack of a current diagnosis. The evidence includes all pertinent, identified records for the period from November 2005 forward, or during the course of the appeal. As discussed below, this evidence affirmatively shows no indication of a chronic disability of laryngitis, nasopharyngitis with residual grippe (as opposed to chronic bronchitis or asthma). As such, no further requests for treatment records are necessary, and the Veteran is not prejudiced by any missing records for this claim. As directed in the prior remand, the agency of original jurisdiction (AOJ) requested copies of any records associated with the Veteran's benefits from the Social Security Administration (SSA). However, the SSA responded that any such records had been destroyed. Moreover, the Board notes that the Veteran testified at the December 2006 DRO hearing that his SSA benefits were due to age, not disability. The Veteran was also notified that any SSA records were not available, and offered the opportunity to provide such records. As such, this directive was satisfied. For the foregoing reasons, the Board finds that the prior remand directives were substantially completed. Another remand as to the issues decided herein would serve no useful purpose, as it would unnecessarily impose additional burdens on VA with no benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA has satisfied its duties to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceedings. As such, the Veteran will not be prejudiced by a decision on these claims. II. Analysis Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford, 8 Vet. App. at 239-40. However, new and material received prior to the expiration of the appeal period will be considered as having been filed with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In other words, where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. Therefore, VA must evaluate submissions received and determine whether they contain new evidence relevant to a pending claim. Id.; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). For the purpose of determining whether new and material evidence has been received, all evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For claims to reopen that are received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade, 24 Vet. App. at 117. VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Here, the RO initially denied service connection for chronic bronchitis with asthma and for laryngitis, nasopharyngitis with residual grippe, in a March 1953 rating decision, based on the Veteran's October 1952 claims. Although the Veteran was informed of his appellate rights at that time, no argument or evidence was received concerning either disorder within the following year. Therefore, this rating decision became final. See 38 U.S.C. § 709 (1952) [38 U.S.C.A. § 7105(c) (West 2002)]; Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008 [38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012)]. The Veteran attempted to reopen both claims in June 1978, and the RO denied the claims in an October 1978 rating decision, which also addressed nonservice-connected pension. The Veteran was again informed of his appellate rights at that time. The Board notes that, in January 2006, the Veteran asserted that he did not receive notice of this 1978 denial of his claims. However, notice of the denial and appellate rights was sent to his last known address at that time, so he is presumed to have received the notice. No argument or evidence concerning these claims was received concerning either disorder within the year following the October 1978 denial and notice. Therefore, this rating decision became final. See 38 U.S.C. § 4005(c) (1976) [38 U.S.C.A. § 7105(c) (West 2002)]; 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978) [38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012)]. In November 2005, the Veteran again sought service connection for a chronic bronchitis with asthma and for laryngitis, nasopharyngitis with residual grippe. Evidence of record at the time of the last prior denials in 1978 included the Veteran's service treatment records, which showed inpatient treatment for acute laryngitis, nasopharyngitis, and upper respiratory infection at Fort Jackson from November to December 1945. In his October 1952 initial claim, the Veteran had reported persistent symptoms of sore throat, bronchitis, chest pains, loss of voice, and difficulty breathing since treatment for "severe attack of grippe" at Fort Jackson in 1945. There were also private records from Perth Amboy General Hospital and from Dr. Cannata concerning treatment in January 1952 and October 1952 for bronchial pneumonia with bronchial asthma. VA treatment records dated in 1947 and 1949 showed treatment for a right ankle/heel condition and for dental work. In his June 1978 claim to reopen, the Veteran reported receiving ENT (ear-nose-throat) treatment at Fort Jackson for asthma in November 1946. It appears that he may have meant 1945, as shown in the service records. Further, during a July 1978 VA examination, the Veteran reported having asthma attacks since 1945. He had objective expiratory wheezes upon examination and was diagnosed with asthma. The Veteran also reported having tonsillitis in service, but the 1978 examiner found no abnormalities in the head, face, neck, nose, or sinuses on examination, and no ENT condition was diagnosed at that time. Since the last final denials in 1978, new evidence includes VA treatment records dated from 2000 forward, private treatment records from several providers dated from 2002 forward, and lay statements from the Veteran and his wife. The private records generally concern the knees. However, a VA problem list indicates diagnoses of asthma in July 2000, upper respiratory disease and bronchiectasis with acute exacerbation in May 2001, and acute bronchitis in July 2004. The Veteran complained of cough, nasal congestion, and other symptoms for eight days in May 2001, and the assessment was upper respiratory infection with bronchospasm. Chest x-rays conducted in January 2003 were noted to show suspected lung edema versus pneumonia, but the results were uncertain as to whether there was an acute finding. In July 2004, the Veteran complained of symptoms including mouth and throat pain, and the diagnosis was acute upper respiratory infection with early bronchitis. Repeated evaluations of the mouth, throat, and respiratory systems were negative, including in a December 2006 VA treatment session. A February 2008 VA treatment record reflects a diagnosis of bronchial asthma controlled and occasional cough, and the Veteran reported exposure to asbestos at work in the past. A VA prescription list for 2008 to 2009 shows an albuterol inhaler and theophylline tablets for asthma. There was no diagnosis of laryngitis, nasopharyngitis or grippe in the VA records. Additional new evidence includes lay statements concerning the Veteran's in-service injuries or treatment and subsequent symptoms. In several statements dated in April 2010, the Veteran reported that he had bronchitis with asthma and laryngitis, nasopharyngitis with residual grippe, as a result of exposure to extremely cold weather while on guard duty for four hours at night. He stated that he lost his voice and was hospitalized at the Fort Jackson hospital for about two weeks for treatment of laryngitis and asthma. During the December 2006 DRO hearing, the Veteran further indicated that this was in November 1945, and that he was "mute" for a while and that he would sometimes "go mute" presently. In April and June 2010, the Veteran asserted that his bronchitis with asthma and laryngitis were related to exposure to tear gas, mustard gas, and onion gas during basic training at Camp O'Reilly in Puerto Rico either in early 1945 or from November 1945 to December 1946. He stated that he had severe effects including vomiting, burning sensation, itching, and shortness of breath, and that he was treated at sick call about a week afterwards for asthma and bronchitis. During the December 2006 DRO hearing, the Veteran further stated that he had wheezing and asthma after this exposure during the third or fourth month of basic training in 1945. He testified that he was treated with pills called Tetral, he was later told that he had chronic bronchitis, and he was now receiving VA treatment for asthma. During the April 2013 Board hearing, the Veteran's wife since 1946 testified that he currently has bronchitis or asthma, and that he had respiratory conditions when he came back from service and continuously since that time. She referred to both asthma and laryngitis as existing since before his discharge from service. The Veteran and his wife are competent, as lay witnesses, to report observable symptoms, continuity of symptomatology, and what medical providers told him about the nature and cause of his condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). When considering the new evidence together with the old evidence, the Board finds that, when presumed to be credible, there is an indication of a current diagnosis of chronic bronchitis or asthma, treatment during service, and persisting and recurrent symptoms since service. This relates to an unestablished fact necessary to substantiate the Veteran's claim for chronic bronchitis with asthma, namely, whether the current disability is related to service. However, the medical evidence is insufficient to establish a relation between the current diagnosis and service. Such evidence triggers VA's duty to obtain a VA examination and raises a reasonable possibility of substantiating the claim for chronic bronchitis with asthma. Accordingly, new and material evidence has been received sufficient to reopen this claim. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-18. In contrast, the claim for laryngitis, nasopharyngitis with residual grippe, was previously denied for no current diagnosis. As discussed above, the Veteran and his wife appear to see his bronchitis with asthma and laryngitis, nasopharyngitis with residual grippe, as essentially the same conditions. Moreover, although they are competent to report observable symptoms, they are not competent to diagnosis the condition due to the complex nature of the involved bodily systems and the interplay of the reported symptoms. See Jandreau, 492 F.3d at 1376-77. As summarized above, the medical evidence during the course of the current appeal shows treatment for bronchitis, upper respiratory infection, and/or asthma, but no evidence of abnormalities in the mouth or throat or a diagnosis of laryngitis, nasopharyngitis, or grippe. Rather, the only positive findings for the mouth or throat are related to upper respiratory infections and findings of bronchitis or asthma. As such, there is no competent evidence indicating a current diagnosis of laryngitis, nasopharyngitis with residual grippe, as opposed to bronchitis or asthma. Accordingly, the new evidence does not raise a reasonable possibility of substantiating the Veteran's claim or an unestablished fact that was the basis of the prior denial, namely, the existence of a current chronic diagnosis. VA's duty to obtain a VA examination has not been triggered, and new and material evidence has not been received sufficient to reopen the claim for laryngitis, nasopharyngitis with residual grippe. See 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117-18. ORDER New and material evidence having been received, the previously denied service connection claim for chronic bronchitis with asthma is reopened, and the appeal is granted to that extent. New and material evidence having not been received, the application to reopen the previously denied service connection claim for laryngitis, nasopharyngitis with residual grippe, is denied. REMAND As discussed above, the evidence of record includes the Veteran's service treatment records dated from February 1945 through December 1946. With regard to the claim for chronic bronchitis with asthma, these records showed inpatient treatment for upper respiratory infection at Fort Jackson from November to December 1945. In October 1952, the Veteran reported persistent symptoms including bronchitis and difficulty breathing since such treatment. Private records from Perth Amboy General Hospital and from Dr. Cannata also summarized post-service treatment in January 1952 and October 1952 for bronchial pneumonia with bronchial asthma. During a July 1978 VA examination, the Veteran reported having asthma attacks since 1945. He had objective expiratory wheezes upon examination and was diagnosed with asthma. More recently, VA treatment records indicate treatment for bronchitis, upper respiratory infection, and asthma on several occasions from 2000 forward, including diagnosis and medications for asthma in 2008 and 2009. The inpatient service treatment records from November to December 1945 appear to be consistent with the Veteran's reports of treatment for two weeks at Fort Jackson in November 1945 after exposure to extreme cold temperatures on guard duty. However, he has also reported having symptoms of asthma after exposure to mustard gas, tear gas, and onion gas while in basic training at Camp O'Reilly in Puerto Rico in early 1945 or from November 1945 to December 1946. The Board notes that the Veteran's February 1945 induction examination was conducted Fort Buchanan in Puerto Rico, and he was also released from service at that station in December 1946. Under these circumstances, the Board finds that further development should be conducted to determine if the Veteran may have been exposed to gases as claimed, to include obtaining his personnel records. Considering all currently available evidence, the Board finds that there is an indication that the Veteran's current asthma and/or any current chronic bronchitis may have been incurred or aggravated by service. In particular, there is an indication a current diagnosis, treatment during service, and persisting and recurrent symptoms after in-service injury or treatment. However, the current medical evidence is insufficient to establish a relationship to service. As such, after attempting to obtain any pertinent, outstanding records, the Veteran should be scheduled for a VA examination to determine the nature and etiology of his claimed disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). With respect to the claim for arthritis in the legs, the Veteran has consistently reported that he injured his knees, and especially the right knee, when he fell down Christ Hill in San Juan while marching as part of the honor guard for the governor during service in January 1946. He states that he was treated at what is now Rodriguez Hospital with a leg or knee brace that he used until as late as February 1947. See, e.g., December 2006 DRO hearing transcript, April 2010 statements. The currently available service treatment records do not show any complaints or treatment for the knees. However, the Board notes that there is a Rodriguez Army Health Clinic associated with Fort Buchanan in Puerto Rico, where the Veteran was stationed. It does not appear that efforts were made to request any such records from this military facility. As such, this should be completed upon remand. The Veteran has reported at times that his arthritis in the knees started about 10 months after the reported fall in service, and at times that his arthritis started many years after this injury. See, e.g., April 2010 statements (indicating arthritis 10 months later); April 2010 statement with notes on the remand directives (stating that arthritis of both knees was not present until years after the fall). In a July 2002 statement, the Veteran reported falling often due to his knees from 1949 forwards, which resulted in treatment at Perth Amboy in 1953. Efforts were made to obtain any such records, but they are no longer available. During the December 2006 DRO hearing, the Veteran testified that he was diagnosed with arthritis in 1960 or 1962, and he has had continuing pain and progression of the disorder over the years. During the April 2013 Board hearing, the Veteran's wife since 1946 testified that he had knee problems after being released from service, and that his employment after service was not physical in nature. However, she also testified that he started to complain about pain in his legs and that arthritis began after 25 years of marriage. The Veteran previously reported treatment at the Damas clinic in May 1977 for arthritis. In April 2010, in response to a request to identify and authorize the release of any records, he indicated that these records were related to Dr. Gomez. He also indicated in April 2010 that he had been treated by Dr. Gomez for approximately six years, or since around 2004. The AOJ attempted to obtain any records from Dr. Gomez's office, but they received a negative response in August 2010. The Veteran also reported treatment from Dr. Mattey, and one attempt was made to obtain any such records. A June 2010 response from Dr. Mattey's office indicates that further information was needed to try to provide any records, including the Veteran's complete name, Social Security number or date of birth, and dates of treatment. It does not appear that this information was requested, or that a second attempt was made, as required by VA regulations. See 38 C.F.R. § 3.159. Therefore, another attempt should be made to obtain any such records upon remand. The currently available medical evidence includes a July 1978 VA examination showing flexion to 110 degrees in both knees. Although no specific knee problems were reported and no arthritis was diagnosed, the Board notes that full flexion of the knees would be to 140 degrees, so there was limitation of motion of the knees. The Veteran indicated in April 2010, in response to a request to identify any outstanding records, that he was treated at Perth Amboy General Hospital in May 1991 and was then admitted to the Miami VA Hospital in May 1991. He stated that Perth Amboy had indicated that treatment records were destroyed after 20 years, so such records are not available. However, it does not appear that any efforts have been made to obtain the identified VA treatment records. This should be attempted. More recently, VA and private records dated from 2000 forward reflect various knee diagnoses including bilateral arthritis or degenerative joint disease. See, e.g., December 2006 private record from Dr. Casanova (x-rays of the left knee showing osteoarthritis and chondrocalcinosis); January 2003 partial VA record (x-rays of the right knee for swelling and tenderness showing narrowing and spurs); December 2006 VA record (assessment of bilateral knee osteoarthritis). The last VA treatment records in the claims file are dated in July 2008 (with the exception of a prescription summary); any more recent outstanding VA records should also be requested. Considering all currently available evidence, the Board finds that there is an indication that the Veteran's current arthritis in the legs (knees) may have been incurred or aggravated by service. In particular, there is an indication of a current diagnosis, reported treatment during service, and persisting and recurrent symptoms since service. However, the current medical evidence is insufficient to establish a relationship to service. As such, the Veteran should be scheduled for a VA examination to determine the nature and etiology of any current knee disabilities. The Board notes that the Veteran has dementia or Alzheimer's disease, as reported by his wife during the April 2013 Board hearing. This condition is also documented in his VA treatment records, such as in October 2006 and February 2008. Further, he was confined to a stretcher and living at a nursing home at the time of the Board hearing. As such, if the Veteran is unable to attend or fully participate in the requested VA examination(s), the examiner(s) should offer the requested opinions based on the available evidence, to the extent possible. Development and readjudication upon remand should reflect consideration of all evidence. As noted above, the Veteran and his wife are competent to report observable symptoms, continuity of symptomatology, and what medical providers told him about the nature and cause of his conditions. See Jandreau, 492 F.3d at 1376-77; Barr, 21 Vet. App. at 308. The Board and the AOJ, as fact finders, retain the discretion to make credibility determinations and weigh the lay and medical evidence submitted. However, competent lay evidence may be rejected only if it is deemed not credible. Further, lay evidence cannot be deemed not credible solely due to the absence of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); McLendon, 20 Vet. App. at 84. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that the Veteran is afforded every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request copies of the Veteran's service personnel records and any evidence of exposure to mustard gas, tear gas, or onion gas while stationed at Camp O'Reilly in 1945 or 1946. Also, request copies of any inpatient or outpatient treatment at Rodriguez Army Health Clinic, or other military medical facility at Fort Buchanan, for the Veteran's knees in January 1946. All appropriate agencies or records repositories should be contacted, including but not limited to the NPRC. 2. Request the Veteran to provide the approximate dates of service and a release (VA Form 21-4142) for VA to obtain treatment records from Dr. Mattey's office. After receiving the necessary information, request copies such records. Also, request copies of any inpatient or outpatient treatment records from the Miami VA Medical Center (MC) dated in May 1991. Any outstanding VA treatment records dated from July 2008 forward, including the results of diagnostic studies such as x-rays, should also be obtained. 3. All requests and all responses for the above-described records, including negative responses, should be documented. All records received must be associated with the file. Reasonable efforts must be made to obtain identified private records. Requests for records from Federal agencies, including VA and service departments, must continue until a determination is made that such records do not exist or any further efforts to obtain them would be futile. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records. 4. After completing the above-described development, schedule the Veteran for the appropriate VA examination(s) to determine the nature and etiology of the current arthritis of the legs (knees) and any current chronic bronchitis or asthma. The entire claims file and a copy of this remand should be made available to the examiner(s) for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. Please note that the Veteran has dementia or Alzheimer's and was on a stretcher and residing in a nursing home as of April 2013. As such, if the Veteran is unable to attend or fully participate in the requested VA examination(s), the examiner(s) should offer the requested opinions based on the available evidence, to the extent possible. The examiner(s) should respond to the following: (a) Is it at least as likely as not (probability of 50 percent or more) that any current disability of the right or left legs (or knees) was incurred as a result of any incident during service, to include the reported fall in January 1946? Also, is it at least as likely as not that the Veteran's arthritis in either leg (knee) manifested to a compensable degree within one year following separation from service, or by December 1947? To the extent possible, please state the degree of symptoms at that time. (b) Is it at least as likely as not (probability of 50 percent or more) that any current chronic bronchitis or asthma was incurred as a result of any incident during service, to include the reported exposure to gases and cold temperatures, and the documented treatment from November to December 1945? (c) For each of the above, the examiner must provide a complete rationale for any opinion offered. Please consider all evidence of record, including the lay statements by the Veteran and his wife as to the timing of his symptoms and prior treatment, as well as the prior VA examinations and other medical evidence of record. Lay evidence may not be rejected due solely to the absence of contemporaneous medical evidence. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. 5. After completing any further development as may be indicated by any response received upon remand, readjudicate the claims based on all lay and medical evidence. If the claims remain denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs